September 28, 2020
In the first case the claimant, Frank Peterson, a music producer, issued proceedings against YouTube and its parent company Google in the German courts in relation to the uploading to YouTube, in 2008, of several phonograms to which he claimed to hold various rights. The material was uploaded by users of that platform without his authorisation. The material consisted of tracks from the album “A Winter Symphony” by the artist Sarah Brightman and private sound recordings made during her “Symphony Tour” concerts.
In the second case, the publishing group Elsevier Inc issued proceedings against Cyando AG in the German courts in relation to the uploading to Cyando’s file-hosting and file-sharing platform Uploaded, in 2013, of various works to which Elsevier holds the exclusive rights. The material was uploaded by users of that platform without its authorisation. The material was “Gray’s Anatomy for Students”, “Atlas of Human Anatomy” and “Campbell-Walsh Urology”, which could be freely consulted on Uploaded via the link collections rehabgate.com, avaxhome.ws and bookarchive.ws.
The German Federal Court has referred several questions to the CJEU.
Advocate General Saugmandsgaard Øe noted that the Directive on Copyright in the Digital Single Market (2019/790/EU), which came into force on 6 June 2019 and is to be implemented by Member States by 7 June 2021 (although the UK will not be implementing it), introduces a new liability regime for online platform operators such as YouTube specific to works illegally uploaded by users of such platforms. The Directive requires such operators to obtain authorisation from the rights holder, for example via a licensing agreement, for any protected works uploaded by users. However, the Directive does not yet apply to these cases, meaning that the liability of operators such as YouTube must be examined under the current regime, i.e. under the E-Commerce Directive (2000/31/EC), the Copyright Directive (2001/29/EC) and the IP Enforcement Directive (2004/48/EC).
The AG has suggested that the CJEU should find that operators such as YouTube and Cyando are not directly liable under the 2001 Copyright Directive for infringement of the exclusive right of authors to communicate their work to the public, when users of those operators’ platforms have illegally upload protected works.
According to the AG, operators such as YouTube and Cyando do not, in principle, carry out an act of “communication to the public” themselves. They are in fact intermediaries providing physical facilities that enable users to carry out an act of communication to the public. Any “primary” liability arising from that “communication” is therefore borne, as a rule, solely by those users.
The AG observed that the process of uploading a file to a platform such as YouTube or Uploaded, once initiated by the user, is automatic, and the platform operator does not select or determine in any other way the content that is published. Any, possibly automated, check made in advance by that platform operator does not constitute selection insofar as that check is confined to identifying illegal content. It does not therefore reflect an intention to communicate certain (and not other) content to the public.
Further, the AG said, the Copyright Directive is not intended to govern “secondary” liability, i.e. the liability of those who facilitate third parties to carry out illegal communications to the public. That liability, which generally involves knowledge of unlawfulness, comes under the national law of the Member States.
In addition, the AG said, platform operators such as YouTube and Cyando could, in principle, benefit from the liability exemption set out in the E-Commerce Directive for the files they store at the request of their users, provided that they do not play an “active role” such as to give them “knowledge of, or control over” the information in question, which usually they do not do. The exemption states that the provider of an information society service, which consists of the storage of information provided by the recipient of the service, cannot be held liable for the information thus stored, unless, upon obtaining knowledge or awareness that the users’ information or activities are illegal, it has not expeditiously removed or disabled access to that information.
The AG said that the exemption applies horizontally to all forms of liability that the platforms might incur in relation to any kind of information stored at the request of their users, whatever the source of that liability, the field of law concerned and the characterisation or exact nature of that liability. That provision therefore covers, in his view, both primary and secondary liability for the information provided and the activities of those users.
The AG said that the exemption would not apply where the platform has “actual knowledge of illegal activity or information” or is “aware of facts or circumstances from which the illegal activity or information is apparent”. Otherwise, there would be a risk of platform operators becoming judges of online legality and a risk of “over-removal” of content stored by them at the request of users.
The AG also said that, irrespective of the question of liability, rights holders can, under EU law, obtain injunctions against the operators of online platforms. He said that rights holders must be able to apply for such injunctions where it is established that third parties have infringed their rights through the service provided by platform operators, without the need to wait for an infringement to take place again and without the need to show improper conduct by the intermediary. (Joined Cases C-682/18 and C-683/18 Frank Peterson v Google LLC EU:C:2020:586 (Opinion of Advocate General) ( 16 July 2020) — to read the Opinion in full, click here).